G. P. MATHUR, J. Criminal Appeal No. 2019 of 1980 has been preferred by Babbu Lal and Sadhu while criminal appeal No. 2119 of 1980 has been preferred by Radhika. Both the appeals have been preferred against the judgment and order dated 9-9-1980 of VIIth Addl. Sessions Judge, Allahabad in S. T. No. 191 of 1979 by which Radhika was convicted under Section 302, IPC and Babbu Lal and Sadhu were convicted under Section 302 read with Section 34, IPC and they were all sentenced to imprisonment for life. Babbu Lal was further convicted under Section 307, IPC while remaining two accused were convicted under Section 307 read with Section 34 IPC and were sentenced to seven years RI. Radhika was also convicted under Section 394 IPC while Babbu Lal and Sadhu were convicted under Section 394 read with Section 34 IPC and they were all sentenced to five years R. I. Since both the appeals arise out of the same judgment, they are being disposed of by a common order. 2. The case of the prosecution, in brief, is that the first informant PW-4 Devi Prasad is son of the deceased Kali Din who was residing in Village Deori. The appellant Radhika had lodged eight cattle of the deceased in the cattle pound in the rainy season prior to the occurrence. Sometime thereafter the complainant Devi Prasad also lodged the cattle of Radhika in the cattle pound. After he got his cattle released, Radhika came to the house of the deceased Kali Din and threatened him that he will have to face the consequences of his doings. The case of the prosecution further is that at about 6 p. m. on 22-2- 1978, the deceased Kali Din was warming himself before the fire which was burning in a small earthen oven in the outer varanda of his house while the complainant Devi Prasad, his brother Sharda Prasad, his mother and a neighbour PW-4 Raj Bali were also sitting there and were warming themselves before the fire. Kali Din was sitting on a cot. Meanwhile Radhika and his son Babbu Lal accused armed with pistols, Sadhu armed with Danda and an unknown persons armed with Lathi came there. Radhika said that no one should be able to escape and thereafter fired from his pistol upon Kali Din which hit him on the back side of waist. Kali Din was sitting on a cot. Meanwhile Radhika and his son Babbu Lal accused armed with pistols, Sadhu armed with Danda and an unknown persons armed with Lathi came there. Radhika said that no one should be able to escape and thereafter fired from his pistol upon Kali Din which hit him on the back side of waist. Raj Bali protested and said why he was committing such crime. Sadhu accused then exhorted that he should be killed. Babbu Lal accused then fired from his pistol upon Raj Bali which hit him on his hand. Kali Din fell down after receiving the injury and became unconscious. On hearing the alarm many persons of the village came there. Radhika then entered the room behind the Varanda and after picking up the licensed gun of Kali Din which was lying on a cot ran away. The witnesses tried to apprehend these persons but Babbu Lal again fired from his pistol due to which they were deterred and did not give a chase. Kali Din died shortly thereafter. Devi Prasad then got a report scribed from Omkar Singh and went along with Raj Bali to P. S. Manda where the FIR was lodged at 10 p. m. on 22-2- 1978. The distance of the police station from the place of occurrence is 10 Km. 3. PW-7 Kanhaiya Lal Yadav was the clerk constable at P. S. Manda. On the basis of the FIR lodged by Devi Prasad, he registered a case in the general diary No. 25 at 10 p. m. He also prepared a chick FIR PW-8 Kunwar Pal Singh, S. O. of P. S. Manda was present at the police station at the time of lodging of the FIR. He sent the injured Raj Bali for medical examination to PHC, Manda. Thereafter he proceeded for Village Deori where the incident had taken place. He held inquest on the body of the deceased Kali Din. He found blood on the quilt and the cot, on which Kali Din was sitting. He took blood stained pillow, quilt and some clothes of the deceased in his possession and prepared their recovery memo. He also found blood below the cot and also on the jute matting of the cot. He collected plain and blood stained earth from there and also the jute matting and prepared their recovery memo. He took blood stained pillow, quilt and some clothes of the deceased in his possession and prepared their recovery memo. He also found blood below the cot and also on the jute matting of the cot. He collected plain and blood stained earth from there and also the jute matting and prepared their recovery memo. He thereafter prepared necessary documents in connection with post-mortem examination of the deceased body. The body was sealed and was sent for post-mortem examination. After completing other formalities and recording the statement of witnesses, he submitted charge-sheet against the three accused persons. The identity of the fourth unknown accused could not be known. 4. The learned CJM took cognizance of the offence and committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302, 307/34 and 394 IPC against Radhika. Charges under Sections 302/34, 307 and 394/34 IPC were framed against Babbu Lal and charges under Sections 302/34, 307/34 and 394/34 IPC were framed against Sadhu accused. The accused pleaded not guilty and claimed to be tried. 5. The prosecution in support of its case examined ten witnesses including two eye-witnesses. The accused in their statement under Section 313 Crpc denied the case of prosecution and alleged their false implication on account of enmity. They did not lead any evidence in their defence. The learned Sessions Judge believed the case of prosecution and convicted and sentenced the appellant as stated above. 6. We have heard Sri S. P. Singh for the appellants, learned AGA for the State and have perused the entire record. 7. In order to establish the motive, the prosecution has examined two witnesses. PW-2 Mohd. Ali has stated that he had taken contract of Bharat Ganj cattle pound in 1977-78. He has further stated that PW-5 Devi Prasad had lodged some cattle in the cattle pound and they were got released by the accused Radhika and Sadhu. In his cross-examination, he has stated that there were 14 cattle which were released on payment of Rs. 337 and a receipt of the same was given to Radhika. PW-9 Gulab Singh stated that he was working as pound clerk in Zila Parishad since 1960 and on 2-8-1977 he was working as pound Moharir in Meja. In his cross-examination, he has stated that there were 14 cattle which were released on payment of Rs. 337 and a receipt of the same was given to Radhika. PW-9 Gulab Singh stated that he was working as pound clerk in Zila Parishad since 1960 and on 2-8-1977 he was working as pound Moharir in Meja. Babbu Lal son of Radhika resident of Village Deori had lodged a buffalo in cattle pound on 2-8-1977 and he had obtained his thumb impression on the register. The buffalo was got released by Devi Prasad son of Kali Din on the same day after depositing the necessary fee. He has proved the copy of the register and also the thumb impression of Babbu Lal on the same which are Ex. Ka-17 and Ka-16 respectively. He has also proved the counter-foil of the receipt which was issued to Devi Prasad and also the relevant entry in the register which are Ex. Ka-19 and Ka-18 respectively. 8. The prosecution examined two eye-witnesses of the incident. PW-5 Devi Prasad is the first informant and is son of the deceased Kali Din. He has stated that Babbu Lal accused is son of Radhika while Sadhu accused is sisters husband of Radhika accused. Sometime before the occurrence, he had lodged cattle of Radhika in Bharat Ganj cattle pound and before that Radhika accused had lodged his cattle in Meja cattle pound. After getting his cattle released, Radhika had come to his house and had threatened his father that he will face dire consequences for his actions and had also given him abuses. Due to this reason, there was enmity between his family and Radhika. At about 6 p. m. on the date of the occurrence, when the sun was going to set, he along with his mother, brother Sharda and Raj Bali were sitting in the outer varanda and were warming themselves before the fire which was burning in small earthen oven. His father Kali Din was sitting on a cot and was also warming himself. The accused Radhika and Babbu Lal armed with pistol, Sadhu armed with Danda and an unknown person armed with Lathi suddenly arrived there. Radhika said that no one should be able to escape and surrounded him. He then entered the varanda and fired from the pistol upon his father, which hit him on the waist. The accused Radhika and Babbu Lal armed with pistol, Sadhu armed with Danda and an unknown person armed with Lathi suddenly arrived there. Radhika said that no one should be able to escape and surrounded him. He then entered the varanda and fired from the pistol upon his father, which hit him on the waist. When Raj Bali protested as to what he was doing, Sadhu accused exhorted that he too should be killed. Babbu Lal then fired upon Raj Bali which hit on his left hand and left side of waist. The licensed gun of Kali Din was kept on a cot in the room immediately behind the varanda. Radhika entered the room and picked up the gun. Thereafter all the accused run away. The complainant and others tried to chase them but Babbu Lal fired again due to which they were deterred and could not pursue them. Kali Din died on the spot. He then dictated the FIR to Omkar Singh and lodged the same at P. S. Manda. PW-4 Raj Bali has corroborated the version given by PW-5 Devi Prasad. He has stated that on the day of the incident when the sun was going to set, he was warming himself before the fire in the outer varanda of house of Kali Din who himself was sitting on a cot. The accused Radhika and Babbu Lal armed with pistols, Sadhu armed with Danda and an unknown person armed with Lathi came there. Radhika fired upon Kali Din which hit him on the waist and when he protested that why he was committing the crime, Sadhu exhorted that he should too be killed. Babbu Lal then fired upon him from the pistol which hit him on the hand and left side of chest below the auxiliary fold. Radhika entered the room and picked up the gun of Kali Din which was lying on a cot thereafter all the accused ran away. When the assailants were given a chase Babbu Lal fired again due to which they were deterred and could not pursue them. 9. PW-6 Dr. Mahesh Kumar Gupta, Medical Officer (Incharge), Tej Bahadur Sapru Hospital, Allahabad conducted post-mortem examination on the body of the deceased Kali Din at 3. When the assailants were given a chase Babbu Lal fired again due to which they were deterred and could not pursue them. 9. PW-6 Dr. Mahesh Kumar Gupta, Medical Officer (Incharge), Tej Bahadur Sapru Hospital, Allahabad conducted post-mortem examination on the body of the deceased Kali Din at 3. 30 p. m. on 24-2-1978 and found following ante-mortem injury on the same: "fire-arm wound 1/2" x 1/2" circular edge of wound inverted and ecchymosis skin surrounding it is scorched and tattooed in the back of left side chest 3" medial to inferior angle of left scapula". 10. The internal examination showed that there was fractures of 7th and 8th ribs of the left side of chest, back side Pleura, left lung and pericardium and heart were ruptured. The doctor found 16 pellets in the left lung. The doctor has proved the post-mortem report which is Ex. Ka-3 on the record. In the opinion of the doctor, the cause of death was shock and haemorrhage on account of ante-mortem injuries. 11. PW-1 Dr. Anurag, Medical Officer, PHC Manda examined injuries of PW-4 Raj Bali at 11. 50 p. m. on 22-2-1978 and prepared a medical examination report which is being reproduced below : " (1) Gun shot wound 8 cm x 4 cm deep situated on the left upper arm involving area of lateral and back portion of the upper arm. There is no clearly localised inlet or outlet of the wound as the blast has taken out a big amount of skin and muscle from the above mentioned wound. The wound is divided by a strip of muscle and skin of 4- 1/2 cm. (2) One brused lacerated wound 7 cm x 7 cm situated on the left lateral aspect of the chest 8 cm below the post auxiliary fold. " The doctor has proved the injury report which is Ex. Ka-1 on the record. The doctor has opined that the injuries could have been caused at 6 p. m. on 22-2-1978 and the same could have been caused by a pistol. Since the wound of Raj Bali was serious, he was referred for treatment to T. B. Sapru Hospital, Allahabad. 12. PW-10 Prabhu Dayal, X-ray Technician, T. B. Sapru Hospital, Allahabad performed the X-ray examination of the injuries of Raj Bali on 24-2-1980 who had been referred by PHC Manda and had been admitted as an indoor patient. Since the wound of Raj Bali was serious, he was referred for treatment to T. B. Sapru Hospital, Allahabad. 12. PW-10 Prabhu Dayal, X-ray Technician, T. B. Sapru Hospital, Allahabad performed the X-ray examination of the injuries of Raj Bali on 24-2-1980 who had been referred by PHC Manda and had been admitted as an indoor patient. The witness has proved the report prepared by Dr. A. K. Bajpai and has also filed original X-ray report which is Ex. Ka-20 on the record. Dr. Bajpai had gone abroad and as such he could not be examined. The witness stated that the X-ray report showed that there were pellets in the left arm and chest. 13. PW-7 Kanhaiya Lal Yadav was the Head Constable at P. S. Manda and he has deposed about the registration of the case at 10 p. m. on the basis of the FIR lodged by Devi Prasad and has also proved the chick FIR prepared by him. PW-3 Gama Prasad constable had accompanied the Investigating Officer to the spot. He had thereafter carried the body of the deceased and had produced the same before the doctor for post-mortem examination. PW-8 Kunwar Pal Singh, S. O. of P. S. Manda in his statement has given the details of various steps taken by him during the course of investigation of the case, reference of which has already been made in earlier part of the judgment. 14. The testimony of PW-9 Gulab Singh shows that the cattle of the deceased were lodged in cattle pound, Meja by Babbu Lal and the same were got released by Devi Prasad on 2-8-1977. He has filed copies of the entries in the relevant register and also the counter foil of the receipts regarding the payment made by Devi Prasad for getting his cattle released. The testimony of PW-2 Mohd. Ali, who was contractor of cattle pound at Bharat Ganj in the year 1977-78 shows that Devi Prasad had lodged some cattle in the cattle pound which were got released by Radhika and Sadhu accused and he identified the aforesaid accused in Court. The testimony of these witnesses show that both the parties had lodged cattle of other side in the cattle pound and then they were released after payment of charges. Generally the lodging of cattle in a cattle pound is strongly resented. The testimony of these witnesses show that both the parties had lodged cattle of other side in the cattle pound and then they were released after payment of charges. Generally the lodging of cattle in a cattle pound is strongly resented. Though the charges for release of the cattle may not be very high nevertheless the relations between the parties do get strained. The fact that both the parties had lodged the cattle of the other side in cattle pound clearly shows that their relations had become quite strained. The testimony of PW-5 Devi Prasad shows that after getting his cattle released Radhika had come to the house of Kali Din deceased and had threatened him with dire consequences. Thus the motive for commission of the crime is fully established. 15. Coming to the main occurrence, it may be noted that incident is alleged to have taken place at about sun set time on 22-2-1978. Both the eye-witnesses have stated that they were warming themselves before the fire at about sun set time. Obviously there would have been sufficient light in which the assailant could easily be identified. The accused are resident of the same village and they were very well-known to the witnesses. The incident took place in the outer varanda of the house when Kali Din was sitting on a cot. The presence of PW-5 Devi Prasad in his own house is most natural and probable. No doubt PW-4 Raj Bali is not an inmate of the house but his presence on the spot is established beyond any shadow of doubt by the injuries received by him. Both the witnesses have consistently stated about the prosecution version of the incident namely firing by Radhika upon Kali Din and firing by Babbu Lal upon Raj Bali then the second firing by Babbu Lal when the assailants were being given a chase. The investigating officer found body of Kali Din on the cot in the outer varanda. Blood was found on the cot ground and also on the jute matting of the cot besides on the pillow and quilt etc. The investigating officer had found the earthen oven on the spot and had collected ash from there. These features again corroborate the prosecution case. Blood was found on the cot ground and also on the jute matting of the cot besides on the pillow and quilt etc. The investigating officer had found the earthen oven on the spot and had collected ash from there. These features again corroborate the prosecution case. The post-mortem examination report of the deceased shows that he sustained fire-arm wound on the left side chest and there was scorching and tattooing which shows that the assailants came close to the deceased and which had given ample opportunity to the witnesses of recognising them. Raj Bali also received gun shot wound on the left upper arm and other injury which is lacerated wound on the lateral aspect of the chest was found to be gun shot injury after X-ray examination. Thus the testimony of the eye-witnesses finds complete corroboration from the medical evidence. 16. The FIR was lodged at 10 p. m. at P. S. Manda which is 10 Kms. from the place of occurrence. The injured Raj Bali was taken to Manda on a palanquin and he was also medically examined at 11. 50 p. m. on the same night at PHC Manda. Thus, the FIR was lodged very promptly in which the first version of the incident was given and this lends further assurance to the prosecution case. The eye-witnesses have also consistently stated about taking away of the gun of the complainant by Radhika accused. Thus the case of the prosecution in so far as Radhika and Babbu Lal accused are concerned, is fully established. 17. Sri S. P. Singh learned Counsel for the appellant has submitted that a dacoity was committed late in night in the house of the complainant in which Kali Din was killed and a false case has been fabricated against the accused persons. He has submitted that partially undigested food was found present in the stomach of the deceased and this showed that the incident took place later in night. Learned Counsel urged that Devi Prasad has admitted in his cross-examination that the deceased took his meal at 12 a. m. and had not taken his dinner which he used to normally take at 7 or 8 p. m. It has thus been contended that the medical evidence belies the eye-witness account. We are unable to accept the submission made. Learned Counsel urged that Devi Prasad has admitted in his cross-examination that the deceased took his meal at 12 a. m. and had not taken his dinner which he used to normally take at 7 or 8 p. m. It has thus been contended that the medical evidence belies the eye-witness account. We are unable to accept the submission made. No question was put to Devi Prasad as to whether the deceased had eaten any thing after he had taken his lunch at 12 a. m. Normally people do eat something at the evening time if there is a long gap between the lunch and the dinner. The post-mortem report shows that there was partially undigested food in the stomach and there was small amount of faecal matter in the intestines. It is quite likely that the deceased may have eaten something around 4 or 5 p. m. as people normally do. It is not possible to draw an inference that the incident took place later in night only on the basis of stomach contents of the deceased. The contention that a dacoity took place in the house of the deceased is too far fetched. If this was a fact then there was no reason why the complainant or PW-4 Raj Bali would have concealed the said fact. If any property had been looted from the house of the complainant, there is no reasons why he would not have given details of the same in the FIR or in the statement under Section 161 Crpc as in the event of recovery of the articles, he could not have made a claim for the same. 18. Sri Singh has strenuously urged that in reply to question No. 16 where suggestion was given that a dacoity had been committed in the house of the Devi Prasad in the night, PW-4 Raj Bali stated that it was correct. We should not forget that according to the case of prosecution, the gun of the complainant had been taken away by Radhika accused. When the question was put to witness, he was not understanding the word dacoity as it is defined in the Indian Penal Code. The witness termed the incident as dacoity as his gun had been taken away and a murderous assault had been made. When the question was put to witness, he was not understanding the word dacoity as it is defined in the Indian Penal Code. The witness termed the incident as dacoity as his gun had been taken away and a murderous assault had been made. From the answer given by the witness it is not possible to draw an inference that offence had been committed by five or six unknown persons or dacoits. Thus, the contention raised by the learned Counsel has no substance. 19. Sri S. P. Singh has next contended that Sadhu accused had been falsely implicated as he is relation of Radhika accused and an artificial role of exhortation had been assigned to him. The record shows that Sadhu accused did not abscond from the village. PW-8 Kunwar Pal Singh, Investigating Officer has stated that while he was going to make search for the accused, J. P. Singh, S. I. brought Sadhu accused after arresting him. This shows that he was throughout present in the village though Radhika and Babbu Lal disappeared. They surrendered in Court subsequently on 9-3-1978. Sadhu was not directly connected with the dispute regarding lodging of the cattle in the cattle pound as none of his cattle had been impounded therein. Sadhu is not alleged to have caused any injury either to the injured or to the deceased. Babbu Lal had also come well armed and prepared as he had brought a pistol. He could resort to firing even without any exhortation. The testimony of the witnesses shows that accused Radhika and Babbu Lal came well prepared to assault Kali Din and Devi Prasad in view of the past bitterness between the parties and consequently the role of exhortation assigned to Sadhu appears to be wholly artificial one. We are, therefore, of the opinion that Sadhu accused should be given benefit of doubt. We may clarify here that we are not doubting the correctness of the prosecution case but are giving this benefit to Sadhu only by way of abundant caution. Therefore, the conviction of Sadhu appellant and also the sentences imposed upon him are liable to be set aside. 20. In the result the appeal preferred by Radhika and Babbu Lal accused are dismissed. Their conviction as recorded by the learned Sessions Judge under various counts and sentences imposed thereunder are affirmed. Therefore, the conviction of Sadhu appellant and also the sentences imposed upon him are liable to be set aside. 20. In the result the appeal preferred by Radhika and Babbu Lal accused are dismissed. Their conviction as recorded by the learned Sessions Judge under various counts and sentences imposed thereunder are affirmed. The bail granted to Radhika and Babbu Lal was cancelled by the order dated 30-7-1998. Radhika and Babbu Lal shall be taken into custody forthwith to undergo the sentences imposed upon them by the learned Sessions Judge. The CJM, Allahabad shall take all steps available in law to take them into custody. 21. The appeal filed by Sadhu accused is allowed and his conviction as well as the sentences imposed thereunder are set aside. He is on bail, he need not surrender. 22. Office is directed to send a copy of this order to CJM, Allahabad who shall report compliance thereof within two months. Appeal No. 2019/80 partly allowed. Appeal No. 2119/80 dismissed. .